People v. Swan

THE COURT.

This ease, as to the main questions presented for consideration, is identical with the case of

People

v.

Sanders, ante,

p. 744 [207 Pac. 380], and the conclusions reached therein with respect to the sufficiency of the indictment and also as to the sufficiency of the evidence to sustain it are hereby given application to this appeal. In addition to the points therein considered the appellant herein makes two further contentions. These are, first, that the trial court committed error in compelling the defendant herein to go to trial without the presence of one

[760]

of his attorneys. Without attempting to recite in detail the facts relied upon by the appellant as supporting this contention and by respondent as opposing it we are satisfied from an examination of the record that the defendant was at all the stages of his case represented by counsel and particularly by counsel who, having also, and prior to his own trial, represented and been present at the trial of his codefendants and were thus familiar with every phase of his ease at all stages of the trial thereof, and, hence, that said defendant was fully and fairly represented by counsel during the trial of his case. This being so, we think the trial court did not abuse its discretion in not further postponing the trial of the cause until certain other counsel of the defendant’s choosing could be present, and that the defendant has suffered no prejudicial error through the action of the trial court in that regard.

The appellant makes the further contention that the trial court committed prejudicial error in prohibiting the jury from considering the question of the credibility of the prosecuting witness Quinlin. We find upon an examination of the record that it fails to sustain the appellant’s contention in that regard. The episode in question occurred during the argument of the case before the jury. It appears that one of the jurors asked some question the substance or purport of which is not shown by the record herein. The court not having caught the purport of the question, asked that it be repeated, which being done the court said: “Mr. Quinlin is not on trial. The one that is on trial is this defendant. If a man had committed a murder, had been guilty of it, and he had been taken by an officer to an office and turned loose for the consideration of five hundred dollars and under threat he would put him in jail if he didn’t pay it, the fact he was guilty of murder would not excuse the officer for taking the money from him. You want to get it out of your mind you are trying Mr. Quinlin. You are now trying to see whether these parties extorted the money from Mr. Quinlin, not if Mr. Quinlin was guilty of something. If Mr. Quinlin was guilty of anything then it was the duty of the officer to file a charge against him, so you just get that out of your mind you are trying Mr. Quinlin and try Mr. Swan.” In the absence of anything going to show what called forth this expression